Jeray v Blue Mountains City Council [2010] NSWLEC 139

Land and Environment Court of New South Wales

CITATION : Jeray v Blue Mountains City Council [2010] NSWLEC 139 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: Ivan Jeray PARTIES : RESPONDENT: Blue Mountains City Council

FILE NUMBER(S) : 40517 of 2010

CORAM: Biscoe J

KEY ISSUES: PRACTICE AND PROCEDURE :- application for ex parte search order refused.

LEGISLATION CITED: Local Government Act 1993, s 12 Uniform Civil Procedure Rules 2005, rr 25.18 - 25.24

Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55 CASES CITED: Jeray v Blue Mountains City Council [2008] NSWLEC 290 Lock International plc v Beswick [1989] 1 WLR 1268

DATES OF HEARING: 30 June 2010

EX TEMPORE JUDGMENT DATE : 30 June 2010

APPLICANT: Mr Ivan Jeray (in person) SOLICITORS: n/a LEGAL REPRESENTATIVES: RESPONDENT: n/a SOLICITORS: n/a

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BISCOE J

30 June 2010

40517 of 2010

IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL

EX TEMPORE JUDGMENT 1 HIS HONOUR: This appears to be the first time that this Court has been asked to make an ex parte search order. Legal principles 2 Created in Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55, a search order, also known as an Anton Piller order, is an ex parte order for an extreme form of discovery at the limits of the courts' civil jurisdiction. A search order requires the respondent to permit the applicant's representatives to enter, search for and remove from the respondent's premises important evidence that is in danger of being destroyed or spirited away unless the order is made without notice to the respondent and executed. The heartland of the search order is infringement of copyright. For example, search orders are quite commonly made against fly by night video pirates. 3 An ex parte order for immediate entry into premises to carry out search and seizure, on an application of which the respondent knows nothing and at which it cannot be heard, an order which may later be shown to have been wrongly made and which may cause severe disruption or harm to a respondent's activities and reputation, is the most powerful weapon in the courts' armoury of interlocutory remedies, rivalled only by the freezing order. A search order is suitable only in limited cases. As was said in Lock International plc v Beswick [1989] 1 WLR 1268 at 1281 per Hoffmann J: "The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff's right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff."